In Depth

A lawsuit claiming that a Texas university's consideration of race in its admissions practices violates the Equal Protection
Clause has been sent back by the Supreme Court of the United States to the 5th Circuit Court of Appeals. In its ruling on
the suit filed by a Caucasian woman denied admission in 2008, the justices, however, did not strike down the use of affirmative
action by the university.

In a 7-1 holding in Abigail
Noel Fisher v. University of Texas at Austin, et al., the U.S. justices reversed the 5th Circuit’s affirmation
of the university’s admissions plan because the Circuit court did not hold the school to the “demanding burden
of strict scrutiny” outlined in Grutter v. Bollinger, 539 U.S. 306 (2003), and Regents of Univ. of Cal.
v. Bakke, 438 U.S. 265, 305 (1978)(opinion of Powell, J).

The admissions plan at issue was adopted in 2004 following decisions in Grutter and Gratz v. Bollinger,
539 U.S. 244 (2003), in which the school reverted to an explicit consideration of race.

The 5th Circuit held that Grutter required courts to give substantial deference to the university, both in the definition
of the compelling interest in diversity’s benefits and in deciding whether its specific plan was narrowly tailored to
achieve its stated goal.

“A plaintiff, of course, bears the burden of placing the validity of a university’s adoption of an affirmative
action plan in issue. But strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to
racial classifications, that available, workable race-neutral alternatives do not suffice,” Associate Justice Anthony
Kennedy wrote.

The majority ordered the 5th Circuit to assess whether the University of Texas at Austin has offered sufficient evidence
to prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.

Other cases handed down were:
• United States v. Kebodeaux, 12-418, which held that the Sex Offender Registration
and Notification Act’s registration requirements as applied to Kebodeaux fall within the scope of Congress’s authority
under the Necessary and Proper Clause;
• Mutual
Pharmaceutical Co. v. Bartlett, 12-142, which held that state law design-defect claims that turn on the adequacy
of a drug’s warnings are pre-empted by federal law under PLIVA Inc. v. Mensing;
• University
of Texas Southwestern Medical Center v. Nassar, 12-484, which held that Title VII retaliation claims must be proved
according to traditional principles of but-for causation, not the lessened causation test stated in 42 U.S.C. Section 2000e-2(m);
and
• Vance v. Ball State University, et al., 11-556, which held an employee is a “supervisor”
for purposes of vicarious liability under Title VII only if the supervisor is empowered by the employer to take tangible employment
actions against the victim.

Also Monday, the justices granted cert in National Labor Relations Board v. Noel Canning, 12-1281, on the president
of the United States’ recess appointment power. The high court is asked to answer whether the president’s recess
appointment power can be exercised during a recess that occurs within a session of the U.S. Senate or if it is limited to
recesses that happen between enumerated sessions of the Senate. The justices are also asked to decide whether the recess appointment
power may be exercised to fill existing vacancies during a recess or if it is limited to vacancies that first arose during
that recess.

The parties will also brief and argue whether the recess appointment power may be exercised when the Senate is convening
every three days in pro forma sessions.

The justices denied rehearing in Laura Jennings v. Indianapolis, et al., 12-9069, a case that came out of the federal
court in Indianapolis and the 7th Circuit Court of Appeals. Laura Jennings, a former employee of the Department of Defense,
filed a Title VII lawsuit after she was fired during her probationary period in late 2010. She was a contract representative
in the DOD’s Defense Finance and Accounting Service. She alleged retaliation in connection to her firing. The Office
of Equal Opportunity Programs found her claim was untimely because she didn’t contact the EEO counselor within 45 days
of her discharge and she failed to state a claim regarding unemployment benefits.

She also filed her federal lawsuit before the 180-day waiting period required to initiate a civil action after an appeal
of the EEO’s decision.

The federal court in Indianapolis granted summary judgment against her on the grounds she failed to exhaust administrative
remedies. The 7th Circuit affirmed in November 2012. The U.S. Supreme Court originally denied taking the case May 13.

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